Companys Deposition Questions of Employee Violated NLRA

Shieh-Sheng Wei, Lynne Wang and Jeffrey Sun were longstanding and open union supporters working at the Chinese Daily News, a publication based in Monterey Park, California. Wang brought a class-action wage and hour lawsuit in U.S. District Court against the newspaper, and Wei and Sun provided declarations in support of this action. During discovery, the newspaper took their depositions asking numerous questions regarding union support, sympathies and related activities. Wei, Wang and Sun alleged that the newspaper’s deposition questions violated Section 8(a)(1) of the National Labor Relations Act.

The judge found that the newspaper did not violate the act and that the questioning by the newspaper was relevant to its defense of the wage and hour class action. The judge further found that Wei, Wang and Sun did not have "substantial confidentiality interests" under Section 7 of the NLRA because they were open and longstanding union supporters.

Reversing the judge’s decision, the National Labor Relations Board held that the newspaper’s questioning during Wei’s deposition violated Section 8(a)(1) by interrogating employees about their union support and activities.

Specifically, the newspaper’s question to Wei "Did you vote for the union to win the election?" violated Wei’s Section 7 rights protecting the confidentiality of his vote. The board further held that it was unnecessary to decide whether other questions posed during the depositions of Wei, Wang and Sun were unlawful, because finding additional violations would not have changed the remedy, which was ordering the newspaper to "cease and desist" from interrogating employees about activity protected under Section 7 of the NLRA. Chinese Daily News, 353 NLRB No. 66, (12/22/08).

Impact: Activity protected under Section 7 of the NLRA extends beyond questioning by the employer of the employee at work. The NLRB’s holding in Chinese Daily News appears to broaden the NLRA’s protections to any questioning by the employer of the employee’s union activities, regardless of context.